SSRN-id2745094：巴勒斯坦、实际占有法和以色列边界-英-60页_835kb

Analysis of "Ut i Possidetis Iuris" and Its Application to Israel's Borders

Definition and Historical Context

Ut i possidetis iuris is a well-established doctrine in customary international law, derived from Roman law and widely acknowledged as a key principle in determining territorial sovereignty after decolonization. The doctrine, meaning "as you possess, so you possess," asserts that newly independent states inherit the administrative boundaries of their former colonial territories, providing a baseline for border disputes. It originated in the 19th century Latin America and gained prominence during the post-colonial era, applying to cases beyond decolonization, such as the dissolution of the Soviet Union or Yugoslavia.

Key Application in Border Disputes

• The doctrine applies to situations where borders are defined by colonial or mandatory administrative lines, overriding actual possession or self-determination claims. Examples include:
  • Mesopotamia (Iraq): Borders were settled despite Turkish and Kurdish disputes, affirming the original Mandate boundaries.
  • Syria and Lebanon: Even after controversial annexations by France, the 1923 borders became the basis for successor states.
  • Togoland and Cameroon: 19th-century partitions were upheld, showing that post-independence borders reflect historical administrative boundaries.
  • Ruanda-Urundi: A partition led to inconsistent ethnic borders, yet the Mandate boundaries remained in place.
  • Walvis Bay (Namibia): Despite disputes over South African administration, "uti possidetis juris" determined the territory's status.

Specific Application to the Palestine Mandate and Israel

• For the Palestine Mandate under British rule, "uti possidetis juris" dictates that Israel's borders at independence (1948) align with the 1948 Mandate boundaries. This includes disputed areas such as the West Bank, Gaza Strip, and parts of Jerusalem.
• Israel is considered to have inherited these borders despite conflicts and subsequent changes, as the doctrine prioritizes historical administrative lines over de jure claims. For instance, the 1949 armistice agreements reinforced these boundaries.
• Legal analysis shows that while Israel's actions post-independence could modify borders through cession or prescription, the core "uti possidetis juris" boundaries remain intact.

Conclusion and Implications

• The doctrine provides a stable framework for resolving border disputes, reducing conflict by freezing territorial claims at independence. However, it can conflict with self-determination principles, yet empirical evidence supports its effectiveness in maintaining peace.
• In the Israeli-Palestinian context, "uti possidetis juris" supports Israel's legal claims to disputed territories, but any future peace agreement might alter these boundaries through mutual agreements. It remains a crucial starting point for legal discussions, though flexibility exists for modifications.